Share Exchange Agreement
This
Share Exchange Agreement, dated as of December 23, 2007, is made by and among
KINGLAKE RESOURCES, INC., a Nevada corporation (“Acquiror Company”), Orient Come
Holdings Limited, a company incorporated in British Virgin Island (“Orient Come”
or "Acquired Company"), each of the Persons listed on Schedule I hereto
(“Orient Come Shareholders” or "Shareholders"), and Beijing K’s Media
Advertisement Ltd. Co., a company organized under the laws of The Peoples'
Republic of China (“K’s Media”) (Acquiror Company, Orient Come, Orient Come
Shareholders and K's Media are collectively referred to as “All
Parties”).
NOW
THEREFORE in consideration
of the premises and the mutual covenants, agreements, representations and
warranties contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
Unless
the context otherwise requires, the terms defined in this Section 1 will have
the meanings herein specified for all purposes of this Agreement, applicable
to
both the singular and plural forms of any of the terms herein defined.
1.1 “Accredited
Investor” has
the meaning set forth in Regulation D under the Securities Act and set forth
on
Exhibit
B.
1.2 “Acquired
Company” means
Orient Come.
1.3 “Acquiror
Company Balance
Sheet” means the Acquiror Company’s balance sheet at July 31, 2007.
1.4 “Acquiror
Company Board”
means the Board of Directors of the Acquiror Company.
1.5 “Acquiror
Company Common
Stock” means the Acquiror Company’s common stock, par value US $0.00001 per
share.
1.6 “Acquiror
Company Shares”
means the Acquiror Company Common Stock being issued to Orient Come Shareholders
and K’s Media pursuant hereto.
1.7 “Affiliate”
means
any
Person that directly or indirectly controls, is controlled by or is under common
control with the indicated Person.
1.8 “Agreement”
means
this
Share Exchange Agreement, including all Schedules and Exhibits hereto, as this
Share Exchange Agreement may be from time to time amended, modified or
supplemented.
1.9 “Closing
Acquiror Company
Shares” means the aggregate number of Acquiror Shares issuable to Orient Come
Shareholders and K’s Media at Closing, less the Escrow Shares.
1.10 “Closing
Date” has the
meaning set forth in Section 3.
1.11 “Code”
means
the Internal
Revenue Code of 1986, as amended.
1.12 “Commission”
means
the
Securities and Exchange Commission or any other federal agency then
administering the Securities Act.
1.13 “Environmental
Laws” means
any Law or other requirement relating to the environment, natural resources,
or
public or employee health and safety.
1.14 “Environmental
Permit”
means all licenses, permits, authorizations, approvals, franchises and rights
required under any applicable Environmental Law or Order.
1.15 “Equity
Security” means any
stock or similar security, including, without limitation, securities containing
equity features and securities containing profit participation features, or
any
security convertible into or exchangeable for, with or without consideration,
any stock or similar security, or any security carrying any warrant, right
or
option to subscribe to or purchase any shares of capital stock, or any such
warrant or right.
1.16 “ERISA”
means
the Employee
Retirement Income Security Act of 1974, as amended.
1.17 “Escrow
Share” has the
meaning set forth in Section 3.2.
1.18 “Exchange
Act” means the
Securities Exchange Act of 1934 or any similar federal statute, and the rules
and regulations of the Commission thereunder, all as the same will then be
in
effect.
1.19 “Exhibits”
means
the
several exhibits referred to and identified in this Agreement.
1.20 “Form
8-K” means a current
report on Form 8-K under the Exchange Act.
1.21 “GAAP”
means,
with respect
to any Person, United States generally accepted accounting principles applied
on
a consistent basis with such Person’s past practices.
1.22 “Governmental
Authority”
means any federal or national, state or provincial, municipal or local
government, governmental authority, regulatory or administrative agency,
governmental commission, department, board, bureau, agency or instrumentality,
political subdivision, commission, court, tribunal, official, arbitrator or
arbitral body, in each case whether U.S. or non-U.S.
1.23 “Indebtedness”
means
any
obligation, contingent or otherwise. Any obligation secured by a Lien on, or
payable out of the proceeds of, or production from, property of the relevant
party will be deemed to be Indebtedness.
1.24 “Intellectual
Property”
means all industrial and intellectual property, including, without limitation,
all U.S. and non-U.S. patents, patent applications, patent rights, trademarks,
trademark applications, common law trademarks, Internet domain names, trade
names, service marks, service xxxx applications, common law service marks,
and
the goodwill associated therewith, copyrights, in both published and unpublished
works, whether registered or unregistered, copyright applications, franchises,
licenses, know-how, trade secrets, technical data, designs, customer lists,
confidential and proprietary information, processes and formulae, all computer
software programs or applications, layouts, inventions, development tools and
all documentation and media constituting, describing or relating to the above,
including manuals, memoranda, and records, whether such intellectual property
has been created, applied for or obtained anywhere throughout the world.
1.25 “Laws”
means,
with respect
to any Person, any U.S. or non-U.S. federal, national, state, provincial, local,
municipal, international, multinational or other law (including common law),
constitution, statute, code, ordinance, rule, regulation or treaty applicable
to
such Person.
1.26 “Lien”
means
any mortgage,
pledge, security interest, encumbrance, lien or charge of any kind, including,
without limitation, any conditional sale or other title retention agreement,
any
lease in the nature thereof and the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction and including
any lien or charge arising by Law.
1.27 “Material
Acquiror Company
Contract” means any and all agreements, contracts, arrangements, leases,
commitments or otherwise, of the Acquiror Company, of the type and nature that
the Acquiror Company is required to file with the Commission.
1.28 “Material
Adverse Effect”
means, when used with respect to the Acquiror Company or the Acquired Company,
as the case may be, any change, effect or circumstance which, individually
or in
the aggregate, would reasonably be expected to (a) have a material adverse
effect on the business, assets, financial condition or results of operations
of
the Acquiror Company or the Acquired Company, as the case may be, in each case
taken as a whole or (b) materially impair the ability of the Acquiror Company
or
the Acquired Company, as the case may be, to perform their obligations under
this Agreement, excluding any change, effect or circumstance resulting from
(i)
the announcement, pendency or consummation of the transactions contemplated
by
this Agreement, (ii) changes in the United States securities markets generally,
or (iii) changes in general economic, currency exchange rate, political or
regulatory conditions in industries in which the Acquiror Company or the
Acquired Company, as the case may be, operate or (c) result in litigation,
claims, disputes or property loss in excess of US$150,000 in the future, and
that would prohibit or otherwise materially interfere with the ability of any
party to this Agreement to perform any of its obligations under this Agreement
in any material respect.
1.29 “Order”
means
any award,
decision, injunction, judgment, order, ruling, subpoena, or verdict entered,
issued, made, or rendered by any Governmental Authority.
1.30 “Organizational
Documents”
means (a) the articles or certificate of incorporation and the by-laws or code
of regulations of a corporation; (b) the partnership agreement and any statement
of partnership of a general partnership; (c) the limited partnership agreement
and the certificate of limited partnership of a limited partnership; (d) the
articles or certificate of formation and operating agreement of a limited
liability company; (e) any other document performing a similar function to
the
documents specified in clauses (a), (b), (c) and (d) adopted or filed in
connection with the creation, formation or organization of a Person; and (f)
any
and all amendments to any of the foregoing.
1.31 “Permitted
Liens” means (a)
Liens for Taxes not yet payable or in respect of which the validity thereof
is
being contested in good faith by appropriate proceedings and for the payment
of
which the relevant party has made adequate reserves; (b) Liens in respect of
pledges or deposits under workmen’s compensation laws or similar legislation,
carriers, warehousemen, mechanics, laborers and materialmen and similar Liens,
if the obligations secured by such Liens are not then delinquent or are being
contested in good faith by appropriate proceedings conducted and for the payment
of which the relevant party has made adequate reserves; (c) statutory Liens
incidental to the conduct of the business of the relevant party which were
not
incurred in connection with the borrowing of money or the obtaining of advances
or credits and that do not in the aggregate materially detract from the value
of
its property or materially impair the use thereof in the operation of its
business; and (d) Liens that would not have a Material Adverse Effect.
1.32 “Person”
means
all natural
persons, corporations, business trusts, associations, companies, partnerships,
limited liability companies, joint ventures and other entities, governments,
agencies and political subdivisions.
1.33 “PRC”
means
the People’s
Republic of China, excluding Taiwan, Hong Kong and Macau.
1.34 “Proceeding”
means
any
action, arbitration, audit, hearing, investigation, litigation, or suit (whether
civil, criminal, administrative or investigative) commenced, brought, conducted,
or heard by or before, or otherwise involving, any Governmental
Authority.
1.35 “Rule
144” means Rule 144
under the Securities Act, as the same may be amended from time to time, or
any
successor statute.
1.36 “Schedule
14(f) Filing”
means an information statement filed by the Acquiror Company on Schedule 14f-1
under the Exchange Act.
1.37 “Schedules”
means
the
several schedules referred to and identified herein, setting forth certain
disclosures, exceptions and other information, data and documents referred
to at
various places throughout this Agreement.
1.38 “SEC
Documents” has the
meaning set forth in Section 6.26.
1.39 “Section
4(2)” means
Section 4(2) under the Securities Act, as the same may be amended from time
to
time, or any successor statute.
1.40 “Securities
Act” means the
Securities Act of 1933, as amended, or any similar federal statute, and the
rules and regulations of the Commission thereunder, all as the same will be
in
effect at the time.
1.41 “Share
Escrow Agreement”
means the escrow agreement substantially in the form of Exhibit A hereto,
pursuant to which the Acquiror Company will deposit [10,500,000]of the Acquiror
Company Shares into an escrow account, which will be released to K’s Media
according to the achievement of performance thresholds following the Share
Exchange.
1.42 “Share
Exchange” has the
meaning set forth in Section 2.1.
1.43 “Shares”
means
the issued
and outstanding ordinary shares of Orient Come.
1.44 “Subsidiary”
means,
with
respect to any Person, any corporation, limited liability company, joint venture
or partnership of which such Person (a) beneficially owns, either directly
or
indirectly, more than 50% of (i) the total combined voting power of all classes
of voting securities of such entity, (ii) the total combined equity interests,
or (iii) the capital or profit interests, in the case of a partnership or
limited liability company; or (b) otherwise has the power to vote or to direct
the voting of sufficient securities to elect a majority of the board of
directors or similar governing body.
1.45 “Survival
Period” has the
meaning set forth in Section 11.1.
1.46 “Taxes”
means
all foreign,
federal, state or local taxes, charges, fees, levies, imposts, duties and other
assessments, as applicable, including, but not limited to, any income,
alternative minimum or add-on, estimated, gross income, gross receipts, sales,
use, transfer, transactions, intangibles, ad valorem, value-added, franchise,
registration, title, license, capital, paid-up capital, profits, withholding,
payroll, employment, unemployment, excise, severance, stamp, occupation,
premium, real property, recording, personal property, federal highway use,
commercial rent, environmental (including, but not limited to, taxes under
Section 59A of the Code) or windfall profit tax, custom, duty or other tax,
governmental fee or other like assessment or charge of any kind whatsoever,
together with any interest, penalties or additions to tax with respect to any
of
the foregoing; and “Tax” means any of the foregoing Taxes.
1.47 “Tax
Group” means any
federal, state, local or foreign consolidated, affiliated, combined, unitary
or
other similar group of which the Acquiror Company is now or was formerly a
member.
1.48 “Tax
Return” means any
return, declaration, report, claim for refund or credit, information return,
statement or other similar document filed with any Governmental Authority with
respect to Taxes, including any schedule or attachment thereto, and including
any amendment thereof.
1.49 “Transaction
Documents”
means, collectively, all agreements, instruments and other documents to be
executed and delivered in connection with the transactions contemplated by
this
Agreement.
1.50 “U.S.”
means
the United
States of America.
1.51 “U.S.
Dollars” or “US $”
means the currency of the United States of America.
1.52 “U.S.
Person” has the
meaning set forth in Regulation S under the Securities Act and set forth on
Exhibit C hereto.
(a) such
Shareholder is
an Accredited Investor; or
(b) such
Shareholder is
not a U.S. Person.
Each
Shareholder severally understands that the Acquiror Company Shares are being
offered and sold to such Shareholder in reliance upon the truth and accuracy
of
the representations, warranties, agreements, acknowledgments and understandings
of such Shareholder set forth in this Agreement, in order that the Acquiror
Company may determine the applicability and availability of the exemptions
from
registration of the Acquiror Company Shares on which the Acquiror Company is
relying.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT
TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS, IN WHICH CASE THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
COMPANY AN OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY
SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND
APPLICABLE STATE SECURITIES LAWS.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1) IN
ACCORDANCE WITH THE PROVISIONS OF REGULATION S PROMULGATED UNDER THE SECURITIES
ACT, AND BASED ON AN OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE
REASONABLY SATISFACTORY TO THE COMPANY, THAT THE PROVISIONS OF REGULATION S
HAVE
BEEN SATISFIED, (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR (3) PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND
APPLICABLE STATE SECURITIES LAWS, IN WHICH CASE THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE COMPANY AN OPINION OF COUNSEL, WHICH COUNSEL AND
OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY
BE
OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED IN THE MANNER
CONTEMPLATED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. HEDGING
TRANSACTIONS INVOLVING THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT
BE
CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.
Orient
Come hereby represents and warrants to the Acquiror Company:
K's
Media
hereby represents and warrants to the Acquiror Company:
6.3.1 The
copies of the
Memorandum and Articles of Association of K's Media, and the documents which
constitute all other Organization Documents of K's Media, that have been
delivered to the Acquiror Company prior to the execution of this Agreement
are
true and complete and have not been amended or repealed. K's Media are not
in
violation or breach of any of the provisions of its Organizational Documents,
except for such violations or breaches as, in the aggregate, will not have
a
Material Adverse Effect.
6.3.2 True,
correct and complete
certified translated copies of the organizational documents of each of K's
Media
have been delivered to the Acquiror Company prior to the execution of this
Agreement, and no action has been taken to amend or repeal such organizational
documents. K’s Media will not in violation or breach of any of the provisions of
its organizational documents, except for such violations or breaches as would
not have a Material Adverse Effect.
The
Acquiror Company represents and warrants to Orient Come’s Shareholders, Orient
Come and K’s Media as follows:
7.2 Organization
and
Qualification. The Acquiror Company is duly organized, validly existing
and in good standing under the laws of Nevada, has all requisite corporate
authority and power, governmental licenses, authorizations, consents and
approvals to carry on its business as presently conducted and to own, hold
and
operate its properties and assets as now owned, held and operated by it. The
Acquiror Company is duly qualified, licensed or domesticated as a foreign
corporation in good standing in each jurisdiction wherein the nature of its
activities or its properties owned, held or operated makes such qualification,
licensing or domestication necessary, except where the failure to be so duly
qualified, licensed or domesticated and in good standing would not have a
Material Adverse Effect. Schedule 7.2sets
forth a true, correct and complete list of the Acquiror Company’s jurisdiction
of organization and each other jurisdiction in which the Acquiror Company
presently conducts its business or owns, holds and operates its properties
and
assets.
7.16.1 The
Acquiror Company has no
employees, independent contractors or other Persons providing research or other
services to them. Except as would not have a Material Adverse Effect, the
Acquiror Company is in full compliance with all Laws regarding employment,
wages, hours, benefits, equal opportunity, collective bargaining, the payment
of
Social Security and other taxes, and occupational safety and health. The
Acquiror Company is not liable for the payment of any compensation, damages,
taxes, fines, penalties or other amounts, however designated, for failure to
comply with any of the foregoing Laws.
7.16.2 Other
than Xxxx Xxx, Xxx
Xxxx and Xxxxx Xxx, the Acquiror Company does not have any officers, directors
or employees. No director, officer or employee of the Acquiror Company is a
party to, or is otherwise bound by, any contract (including any confidentiality,
non-competition or proprietary rights agreement) with any other Person that
in
any way adversely affects or will materially affect (a) the performance of
his
or her duties as a director, officer or employee of the Acquiror Company or
(b)
the ability of the Acquiror Company to conduct its business. Except as set
forth
on Schedule
7.16.2, each employee of the Acquiror Company is employed on an at-will
basis and the Acquiror Company does not have any contract with any of its
employees which would interfere with its ability to discharge its
employees.
7.17 Tax
Returns and
Audits.
7.17.1 Tax
Returns. Since
July 31, 2007 and, to the best of the Acquiror Company’s knowledge, for all
periods prior thereto, the Acquiror Company has filed all material Tax Returns
required to be filed (if any) by or on behalf of the Acquiror Company and has
paid all material Taxes of the Acquiror Company required to have been paid
(whether or not reflected on any Tax Return). Except as set forth on Schedule 7.17.1, (a)
no Governmental Authority in any jurisdiction has made a claim, assertion or
threat to the Acquiror Company that the Acquiror Company is or may be subject
to
taxation by such jurisdiction; (b) there are no Liens with respect to Taxes
on
the Acquiror Company’s property or assets other than Permitted Liens; and (c)
there are no Tax rulings, requests for rulings, or closing agreements relating
to the Acquiror Company for any period (or portion of a period) that would
affect any period after the date hereof.
7.17.2 No
Adjustments,
Changes. Neither the Acquiror Company nor any other Person on behalf of
the Acquiror Company (a) has executed or entered into a closing agreement
pursuant to Section 7121 of the Code or any predecessor provision thereof or
any
similar provision of state, local or foreign law; or (b) has agreed to or is
required to make any adjustments pursuant to Section 481(a) of the Code or
any
similar provision of state, local or foreign law.
7.17.3 No
Disputes. The
Acquiror Company has delivered to Orient Come, Orient Come’s Shareholders and
K’s Media true, correct and complete copies of all Tax Returns and examination
reports and statements of deficiencies assessed or asserted against or agreed
to
by the Acquiror Company, if any, for each of the last two years and any and
all
correspondence with respect to the foregoing. There is no pending audit,
examination, investigation, dispute, proceeding or claim with respect to any
Taxes of the Acquiror Company, nor is any such claim or dispute pending or
contemplated. The Acquiror Company has not receive notice of any such audit,
examination, investigation, dispute, proceeding or claim with respect to any
Taxes with respect to any periods prior to January 1, 2005.
7.17.4 Not
a U.S. Real Property
Holding Corporation. The Acquiror Company is not and has not been a
United States real property holding corporation within the meaning of Section
897(c)(2) of the Code at any time during the applicable period specified in
Section 897(c)(1)(A)(ii) of the Code.
7.17.5 No
Tax Allocation,
Sharing. The Acquiror Company is not and has not been a party to any Tax
allocation or sharing agreement.
7.17.6 No
Other
Arrangements. The Acquiror Company is not a party to any agreement,
contract or arrangement for services that would result, individually or in
the
aggregate, in the payment of any amount that would not be deductible by reason
of Section 162(m), 280G or 404 of the Code. The Acquiror Company is not a
“consenting corporation” within the meaning of Section 341(f) of the Code. The
Acquiror Company does not have any “tax-exempt bond financed property” or
“tax-exempt use property” within the meaning of Section 168(g) or (h),
respectively of the Code. The Acquiror Company does not have any outstanding
closing agreement, ruling request, request for consent to change a method of
accounting, subpoena or request for information to or from a Governmental
Authority in connection with any Tax matter. During the last two years, the
Acquiror Company has not engaged in any exchange with a related party (within
the meaning of Section 1031(f) of the Code) under which gain realized was not
recognized by reason of Section 1031 of the Code. The Company is not a party
to
any reportable transaction within the meaning of Treasury Regulation Section
1.6011-4.
7.27.1 The
Acquiror Company has no
stock option plans providing for the grant by the Acquiror Company of stock
options to directors, officers or employees.
7.27.2 The
Acquiror Company has no
employee benefit plans or arrangements covering their present and former
employees or providing benefits to such persons in respect of services provided
the Acquiror Company.
7.27.3 Neither
the consummation of
the transactions contemplated hereby alone, nor in combination with another
event, with respect to each director, officer, employee and consultant of the
Acquiror Company, will result in (a) any payment (including, without limitation,
severance, unemployment compensation or bonus payments) becoming due from the
Acquiror Company, (b) any increase in the amount of compensation or benefits
payable to any such individual or (c) any acceleration of the vesting or timing
of payment of compensation payable to any such individual. No agreement,
arrangement or other contract of the Acquiror Company provides benefits or
payments contingent upon, triggered by, or increased as a result of a change
in
the ownership or effective control of the Acquiror Company.
7.28 Environmental
and Safety
Matters. Except as set forth on Schedule 7.28:
7.28.1 The
Acquiror Company has at
all time been and is in compliance with all Environmental Laws applicable to
the
Acquiror Company.
7.28.2 There
are no Proceedings
pending or threatened against the Acquiror Company alleging the violation of
any
Environmental Law or Environmental Permit applicable to the Acquiror Company
or
alleging that the Acquiror Company is a potentially responsible party for any
environmental site contamination.
7.28.3 Neither
this Agreement nor
the consummation of the transactions contemplated by this Agreement shall impose
any obligations to notify or obtain the consent of any Governmental Authority
or
third Persons under any Environmental Laws applicable to the Acquiror
Company.
8.1.1 Make
and keep public
information available, as those terms are understood and defined in Rule 144;
and
8.1.2 File
with the Commission,
in a timely manner, all reports and other documents required of the Acquiror
Company under the Exchange Act.
8.3 Schedule
14(f). At
least ten (10) days prior to the Closing Date, the Acquiror Company shall file
the Schedule 14(f) Filing and mail the same to each Acquiror Company
shareholder.
The
Acquiror Company’s obligation to acquire Orient Come’s Shares and to take the
other actions required to be taken by the Acquiror Company at the Closing Date
is subject to the satisfaction, at or prior to the Closing Date, of each of
the
following conditions (any of which may be waived by the Acquiror Company, in
whole or in part):
9.2 Performance
by
Orient
Come, Orient Come’s Shareholders and K’s Media.
9.2.1 All
of the covenants and
obligations that Orient Come, Orient Come’s Shareholders and K’s Media are
required to perform or to comply with pursuant to this Agreement (considered
collectively), and each of these covenants and obligations (considered
individually), must have been duly performed and complied with in all material
respects.
9.2.2 Each
document required to
be delivered by Orient Come, Orient Come’s Shareholder and K’s Media pursuant to
this Agreement must have been delivered.
9.2.3 Receipt
of executed
signature pages to the Management Contract signed between Orient Come and K’s
Media.
9.6.1 All
material consents,
waivers, approvals, authorizations or orders required to be obtained, and all
filings required to be made, by Orient Come, Orient Come’s Shareholder and K’s
Media for the authorization, execution and delivery of this Agreement and the
consummation by them of the transactions contemplated by this Agreement, shall
have been obtained and made Orient Come, Orient Come’s Shareholder and K’s
Media, as the case may be, except where the failure to receive such consents,
waivers, approvals, authorizations or orders or to make such filings would
not
have a Material Adverse Effect on Orient Come or K’s Media or the Acquiror
Company.
9.6.2 Without
limiting the
foregoing, the Schedule 14(f) Filing shall have been prepared to be filed with
the Commission by the Acquiror Company after the Closing Date.
9.7 Documents.
The
Company and the Shareholders must deliver to the Acquiror Company at the
Closing:
9.7.1 share
certificates
evidencing the number of Shares held by each Orient Come’s Shareholder (as set
forth in Exhibit
A), along with executed share transfer forms transferring such Shares
to
the Acquiror Company together with a certified copy of a board resolution of
Orient Come approving the registration of the transfer of such shares to
Acquiror Company (subject to Closing and payment of stamp duty);
9.7.2 each
of the Transaction
Documents to which Orient Come, Orient Come’s Shareholder and K’s Media is a
party, duly executed;
9.7.3 such
other documents as the
Acquiror Company may reasonably request for the purpose of (A) evidencing the
accuracy of any of the representations and warranties of Orient Come, Orient
Come’s Shareholder and K’s Media pursuant to Section 9.1, (B) evidencing the
performance of, or compliance by Orient Come, Orient Come’s Shareholder and K’s
Media with, any covenant or obligation required to be performed or complied
with
by the Company or the Shareholders, as the case may be, (C) evidencing the
satisfaction of any condition referred to in this Section 9, or (D) otherwise
facilitating the consummation or performance of any of the transactions
contemplated by this Agreement.
SECTION
X.
The
Shareholders’ obligation to transfer the Shares and the obligations of the
Company to take the other actions required to be taken by the Company in advance
of or at the Closing Date are subject to the satisfaction, at or prior to the
Closing Date, of each of the following conditions (any of which may be waived
by
the Company and the Shareholders jointly, in whole or in part):
10.1 Accuracy
of
Representations. The representations and warranties of the Acquiror
Company set forth in this Agreement or in any Schedule or certificate delivered
pursuant hereto shall be true and correct in all material respects as of the
date of this Agreement except to the extent a representation or warranty is
expressly limited by its terms to another date.
10.2 Performance
by the Acquiror
Company.
10.2.1 All
of the covenants and
obligations that the Acquiror Company are required to perform or to comply
with
pursuant to this Agreement (considered collectively), and each of these
covenants and obligations (considered individually), must have been performed
and complied with in all respects.
10.2.2 Each
document required to
be delivered by the Acquiror Company pursuant to this Agreement must have been
delivered.
10.3 No
Force Majeure
Event. There shall not have been any delay, error, failure or
interruption in the conduct of the business of the Acquiror Company, or any
loss, injury, delay, damage, distress, or other casualty, due to force majeure
including but not limited to (a) acts of God; (b) fire or explosion; (c) war,
acts of terrorism or other civil unrest; or (d) national emergency.
10.4 Certificate
of
Officer. The Acquiror Company will have delivered to the Company a
certificate, dated the Closing Date, executed by an officer of the Acquiror
Company, certifying the satisfaction of the conditions specified in Sections
10.1, 10.2, and 10.3 relating to the Acquiror Company.
10.5 Consents.
10.5.1 All
material consents,
waivers, approvals, authorizations or orders required to be obtained, and all
filings required to be made, by the Acquiror Company for the authorization,
execution and delivery of this Agreement and the consummation by it of the
transactions contemplated by this Agreement, shall have been obtained and made
by the Acquiror Company, except where the failure to receive such consents,
waivers, approvals, authorizations or orders or to make such filings would
not
have a Material Adverse Effect on the Company or the Acquiror Company.
10.5.2 The
Schedule 14(f) Filing
shall have been prepared to be filed with the Commission by the Acquiror Company
and the Acquiror Company shareholders at least ten (10) days prior to the
Closing Date.
10.6 Documents.
The
Acquiror Company must have caused the following documents to be delivered to
the
Company and/or the Shareholders:
10.6.1 share
certificates
evidencing each Shareholder’s pro rata share of the Closing Acquiror Company
Shares (as set forth in Exhibit A);
10.6.2 a
Secretary’s Certificate,
dated the Closing Date, certifying attached copies of (a) the Organizational
Documents of the Acquiror Company, (b) the resolutions of the Acquiror Company
Board approving this Agreement and the transactions contemplated hereby; and
(c)
the incumbency of each authorized officer of the Acquiror Company signing this
Agreement and any other agreement or instrument contemplated hereby to which
the
Acquiror Company is a party;
10.6.3 a
Certificate of Good
Standing of the Acquiror Company;
10.6.4 each
of the Transaction
Documents to which the Acquiror Company is a party, duly executed;
10.6.5 the
resignation of each of
Xxxx Xxx and Xxxxx Xxx as officers of the Acquiror Company on the Closing
Date;
10.6.6 Acquiror
Company Board
resolutions (i) appointing Xxxx Xxx to serve as Chief Financial Officer,
Treasurer and Secretary of the Acquiror Company and Xxx Xxxxxx to serve
President and Chief Executive Officer of the Acquiror Company, and (ii)
nominating Xx Xxxx to serve as Chairman of the Acquiror Company Board and Xxxxx
Xxx and Xxx Xxxxxx to serve as members of the Acquiror Company Board, with
such
appointment to be effective on the Effective Date;
10.6.7 the
resignations of Xxx
Xxxx and Xxxxx Xxx as directors of the Acquiror Company, such resignations
to be
effective on the Effective Date;
10.6.8 a
statement from the
Acquiror Company’s transfer agent regarding the number of issued and outstanding
shares of common stock immediately before and after the Closing; and,
10.6.9 such
other documents as
Orient Come may reasonably request for the purpose of (i) evidencing the
accuracy of any representation or warranty of the Acquiror Company pursuant
to
Section 10.1, (ii) evidencing the performance by the Acquiror Company of, or
the
compliance by the Acquiror Company with, any covenant or obligation required
to
be performed or complied with by the Acquiror Company, (iii) evidencing the
satisfaction of any condition referred to in this Section 10, or (iv) otherwise
facilitating the consummation of any of the transactions contemplated by this
Agreement.
10.7 No
Proceedings. Since
the date of this Agreement, there must not have been commenced or threatened
against the Acquiror Company, the Company or any Shareholder, or against any
Affiliate thereof, any Proceeding (which Proceeding remains unresolved as of
the
date of this Agreement) (a) involving any challenge to, or seeking damages
or
other relief in connection with, any of the transactions contemplated hereby,
or
(b) that may have the effect of preventing, delaying, making illegal, or
otherwise interfering with any of the transactions contemplated hereby.
10.8 No
Claim Regarding Stock
Ownership or Consideration. There must not have been made or threatened
by any Person, hereto, any claim asserting that such Person (a) is the holder
of, or has the right to acquire or to obtain beneficial ownership of the
Acquiror Company Common Stock or any other stock, voting, equity, or ownership
interest in, the Acquiror Company or (b) is entitled to all or any portion
of
the Acquiror Company Shares.
11.2.1 Any
and all damages,
losses, settlement payments, in respect of deficiencies, liabilities, costs,
expenses and claims suffered, sustained, incurred or required to be paid by
any
Acquiror Company Indemnified Party, and any and all actions, suits, claims,
or
legal, administrative, arbitration, governmental or other procedures or
investigation against any Acquiror Company Indemnified Party, which arises
or
results from a third-party claim brought against an Acquiror Company Indemnified
Person to the extent based on (i) a breach of the representations and warranties
with respect to the business, operations or assets of the Company of any, or
(ii) the actions or omissions of any officer, director, shareholder, employee,
or agent of the Company after the Closing; provided, however, that in the event
of a third-party claim brought against an Acquired Company Indemnified Person
based upon subsection 11.2.1(ii), the Survival Period shall be extended for
an
additional 12 months.
11.2.2 Orient
Come, Orient Come’s
Shareholders and K’s Media shall have no obligation to indemnify or hold
harmless an Acquiror Company Indemnified Party for any settlement entered into
by such Acquiror Company Indemnified Party without Orient Come, Orient Come’s
Shareholders and K’s Media’s prior written consent after the Closing of this
Agreement. In addition, Orient Come, Orient Come’s Shareholders and K’s Media
shall have no obligation to indemnify or hold harmless any Acquiror Company
Indemnified Person for any damages, claims, losses or the like based on the
diminution in value of the Acquiror Company Indemnified Person’s common
shares.
12.3.1 All
Parties will maintain
in confidence, and will cause their respective directors, officers, employees,
agents, and advisors to maintain in confidence, any written, oral, or other
information obtained in confidence from another party in connection with this
Agreement or the transactions contemplated by this Agreement, unless (a) such
information is already known to such party or to others not bound by a duty
of
confidentiality or such information becomes publicly available through no fault
of such party, (b) the use of such information is necessary or appropriate
in
making any required filing with the Commission, or obtaining any consent or
approval required for the consummation of the transactions contemplated by
this
Agreement, or (c) the furnishing or use of such information is required by
or
necessary or appropriate in connection with legal proceedings.
12.3.2 In
the event that any party
is required to disclose any information of another party pursuant to clause
(b)
or (c) of Section 12.3.1, the party requested or required to make the disclosure
(the “disclosing party”) shall provide the party that provided such information
(the “providing party”) with prompt notice of any such requirement so that the
providing party may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this Section 12.3. If, in the absence
of
a protective order or other remedy or the receipt of a waiver by the providing
party, the disclosing party is nonetheless, in the opinion of counsel, legally
compelled to disclose the information of the providing party, the disclosing
party may, without liability hereunder, disclose only that portion of the
providing party’s information which such counsel advises is legally required to
be disclosed, provided that the disclosing party exercises its reasonable
efforts to preserve the confidentiality of the providing party’s information,
including, without limitation, by cooperating with the providing party to obtain
an appropriate protective order or other relief assurance that confidential
treatment will be accorded the providing party’s information.
12.3.3 If
the transactions
contemplated by this Agreement are not consummated, each party will return
or
destroy as much of such written information as the other party may reasonably
request.
If
to Acquiror Company:
Kinglake
Resources, Inc.
Xxxxx
000-000 Xxxxxxx Xxxxxx
Xxxxxxxxx,
XX, X0X 0X0, Xxxxxx
|
With
copy to:
Xxxxxxxx
& Xxxx, LLP
000
Xxxx Xxx Xxxx Xxxx., Xxxxx 0000
Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
|
If
to Orient Come:
Orient
Come Holdings Limited
Xxxx
000, Xxxxx X0
Xxxxxxxx
Xxxxx, Xx. 0 Xxxxx Xx Xxxxxx
Xxxxxxx,
Xxxxx 000000
|
With
copy to:
|
If
to Orient Come’s Shareholder:
Orient
Come Holdings Limited
Xxxx
000, Xxxxx X0
Xxxxxxxx
Xxxxx, Xx. 0 Xxxxx Xx Xxxxxx
Xxxxxxx,
Xxxxx 000000
|
With
copy to:
|
If
to K’s Media:
Beijing
K's Media Advertising Ltd. Co.
Xxxx
000, Xx. 00
Xxx
Xx Xxxxxx, Xxx Xi Economic Xxxx
Xxxx
Xxx Xxxxxxxx, Xxxxxxx, Xxxxx
|
With
copy to:
|
12.12 Governing
Law. This
Agreement will be governed by the laws of the State of Nevada without regard
to
conflicts of laws principles.
IN
WITNESS WHEREOF, the parties have executed and delivered this Share Exchange
Agreement as of the date first written above.
Acquiror Company:
Kinglake
Resources, Inc.
Signed:
/s/ XXXX XXX
[Missing
Graphic Reference]
Printed
name: Xxxx Xxx
Title:
President
|
Beijing
K’s Media Advertisement Ltd. Co.
Signed:
/s/ KUN (XXXXX) WEI
[Missing
Graphic Reference]
Printed
name: Kun (Xxxxx) Wei
[Missing
Graphic Reference]
Title: Director
and Officer
[Missing
Graphic Reference]
|
|
Orient
Come Holdings
Limited
Signed:
/s/ XX XXXX
[Missing
Graphic Reference]
Printed
name: Xx Xxxx
[Missing
Graphic Reference]
Title: Director
and Officer
[Missing
Graphic Reference]
|
Orient
Come’s Shareholders
Signed:
/s/ XX XXXX
[Missing
Graphic Reference]
Printed
name: Xx Xxxx
Signed:
/s/ KUN (XXXXX) WEI
[Missing
Graphic Reference]
Printed
name: Kun (Xxxxx) Wei
|
SCHEDULES
Schedule
4.1.5
|
Shareholder
Brokers or Finders
|
|
Schedule
5.1
|
Orient
Come Organization and Qualification
|
|
Schedule
5.11
|
Orient
Come Brokers or Finders
|
|
Schedule
6.1
|
K's
Media Organization and Qualification
|
|
Schedule
6.7.2
|
Capitalization
of K's Media
|
|
Schedule
6.11
|
K's
Media Brokers or Finders
|
|
Schedule
7.1
|
Acquiror
CompanyDisclosure Schedules
|
|
Schedule
7.2
|
Acquiror
Company Organization and Qualification
|
|
Schedule
7.4
|
Acquiror
Company Organizational Documents
|
|
Schedule
7.12
|
Acquiror
Company Brokers or Finders
|
|
Schedule
7.13
|
Acquiror
Company Absence of Undisclosed Liabilities
|
|
Schedule
7.14
|
Acquiror
Company Changes
|
|
Schedule
7.16.2
|
Acquiror
Company Employees
|
|
Schedule
7.17.1
|
Acquiror
Company Tax Returns and Audits
|
|
Schedule
7.21
|
Acquiror
Company Interested Party Transactions
|
|
Schedule
7.23
|
Acquiror
Company Bank Accounts and Safe Deposit Boxes
|
|
Schedule
7.26
|
Acquiror
Company SEC Documents; Financial Statements
|
|
Schedule
7.28
|
Acquiror
Company Environmental and Safety Matters
|
|
Schedule
7.31
|
Acquiror
Company Adverse Interest
|
EXHIBIT
A
SHARES
AND ACQUIROR COMPANY SHARES TO BE EXCHANGED
EXHIBIT
B
Definition
of “Accredited Investor”
The
term
“accredited investor” means:
(1)
|
A
bank as defined in Section 3(a)(2) of the Securities Act, or a savings
and
loan association or other institution as defined in Section 3(a)(5)(A)
of
the Securities Act, whether acting in its individual or fiduciary
capacity; a broker or dealer registered pursuant to Section 15 of
the
Securities Exchange Act of 1934; an insurance company as defined
in
Section 2(13) of the Securities Act; an investment company registered
under the Investment Company Act of 1940 (the “Investment Company Act”) or
a business development company as defined in Section 2(a)(48) of
the
Investment Company Act; a Small Business Investment Company licensed
by
the U.S. Small Business Administration under Section 301(c) or (d)
of the
Small Business Investment Act of 1958; a plan established and maintained
by a state, its political subdivisions or any agency or instrumentality
of
a state or its political subdivisions for the benefit of its employees,
if
such plan has total assets in excess of US $5,000,000; an employee
benefit
plan within the meaning of the Employee Retirement Income Security
Act of
1974 (“ERISA”), if the investment decision is made by a plan fiduciary, as
defined in Section 3(21) of ERISA, which is either a bank, savings
and
loan association, insurance company, or registered investment advisor,
or
if the employee benefit plan has total assets in excess of US $5,000,000
or, if a self-directed plan, with investment decisions made solely
by
persons that are accredited investors.
|
(2)
|
A
private business development company as defined in Section 202(a)(22)
of
the Investment Advisers Act of 1940.
|
(3)
|
An
organization described in Section 501(c)(3) of the Internal Revenue
Code,
corporation, Massachusetts or similar business trust, or partnership,
not
formed for the specific purpose of acquiring the securities offered,
with
total assets in excess of US $5,000,000.
|
(4)
|
A
director or executive officer of the Acquiror Company.
|
(5)
|
A
natural person whose individual net worth, or joint net worth with
that
person’s spouse, at the time of his or her purchase exceeds US
$1,000,000.
|
(6)
|
A
natural person who had an individual income in excess of US $200,000
in
each of the two most recent years or joint income with that person’s
spouse in excess of US $300,000 in each of those years and has a
reasonable expectation of reaching the same income level in the current
year.
|
(7)
|
A
trust, with total assets in excess of US $5,000,000, not formed for
the
specific purpose of acquiring the securities offered, whose purchase
is
directed by a sophisticated person as described in Rule 506(b)(2)(ii)
(i.e., a person who has such knowledge and experience in financial
and
business matters that he is capable of evaluating the merits and
risks of
the prospective investment).
|
(8)
|
An
entity in which all of the equity owners are accredited investors.
(If
this alternative is checked, the Shareholder must identify each equity
owner and provide statements signed by each demonstrating how each
is
qualified as an accredited investor.)
|
EXHIBIT
C
Definition
of “U.S. Person”
(1)
|
“U.S.
person” (as defined in Regulation S) means:
|
|
(i)
|
Any
natural person resident in the United States;
|
(ii)
|
Any
partnership or corporation organized or incorporated under the laws
of the
United States;
|
(iii)
|
Any
estate of which any executor or administrator is a U.S. person;
|
(iv)
|
Any
trust of which any trustee is a U.S. person;
|
(v)
|
Any
agency or branch of a foreign entity located in the United States;
|
(vi)
|
Any
non-discretionary account or similar account (other than an estate
or
trust) held by a dealer or other fiduciary for the benefit or account
of a
U.S. person;
|
(vii)
|
Any
discretionary account or similar account (other than an estate or
trust)
held by a dealer or other fiduciary organized, incorporated, or (if
an
individual) resident in the United States; and
|
(viii)
|
Any
partnership or corporation if: (A) organized or incorporated under
the
laws of any foreign jurisdiction; and (B) formed by a U.S. person
principally for the purpose of investing in securities not registered
under the Securities Act, unless it is organized or incorporated,
and
owned, by accredited investors (as defined in Rule 501(a)) who are
not
natural persons, estates or trusts.
|
|
(2)
|
Notwithstanding
paragraph (1) above, any discretionary account or similar account
(other
than an estate or trust) held for the benefit or account of a non-U.S.
person by a dealer or other professional fiduciary organized,
incorporated, or (if an individual) resident in the United States
shall
not be deemed a “U.S. person.”
|
(3)
|
Notwithstanding
paragraph (1), any estate of which any professional fiduciary acting
as
executor or administrator is a U.S. person shall not be deemed a
U.S.
person if:
|
|
(i)
|
An
executor or administrator of the estate who is not a U.S. person
has sole
or shared investment discretion with respect to the assets of the
estate;
and
|
(ii)
|
The
estate is governed by foreign law.
|
|
(4)
|
Notwithstanding
paragraph (1), any trust of which any professional fiduciary acting
as
trustee is a U.S. person shall not be deemed a U.S. person if a trustee
who is not a U.S. person has sole or shared investment discretion
with
respect to the trust assets, and no beneficiary of the trust (and
no
settler if the trust is revocable) is a U.S. person.
|
(5)
|
Notwithstanding
paragraph (1), an employee benefit plan established and administered
in
accordance with the law of a country other than the United States
and
customary practices and documentation of such country shall not be
deemed
a U.S. person.
|
(6)
|
Notwithstanding
paragraph (1), any agency or branch of a U.S. person located outside
the
United States shall not be deemed a “U.S. person” if:
|
(i)
|
The
agency or branch operates for valid business reasons; and
|
(ii)
|
The
agency or branch is engaged in the business of insurance or banking
and is
subject to substantive insurance or banking regulation, respectively,
in
the jurisdiction where located.
|
(7)
|
The
International Monetary Fund, the International Bank for Reconstruction
and
Development, the Inter-American Development Bank, the Asian Development
Bank, the African Development Bank, the United Nations, and their
agencies, affiliates and pension plans, and any other similar
international organizations, their agencies, affiliates and pension
plans
shall not be deemed “U.S. persons.”
|
EXHIBIT
D
ACCREDITED
INVESTOR REPRESENTATIONS
Each
of
the Shareholders indicating that it is an Accredited Investor, severally and
not
jointly, further represents and warrants to the Acquiror Company as
follows:
1.
|
Such
person or entity qualifies as an Accredited Investor on the basis
set
forth on its signature page to this Agreement.
|
2.
|
Such
person or entity has sufficient knowledge and experience in finance,
securities, investments and other business matters to be able to
protect
such Shareholder’s interests in connection with the transactions
contemplated by this Agreement.
|
3.
|
Such
person or entity has consulted, to the extent that it has deemed
necessary, with its tax, legal, accounting and financial advisors
concerning its investment in the Acquiror Company Shares.
|
4.
|
Such
person or entity understands the various risks of an investment in
the
Acquiror Company Shares and can afford to bear such risks for an
indefinite period of time, including, without limitation, the risk
of
losing its entire investment in the Acquiror Company Shares.
|
5.
|
Such
person or entity has had access to the Acquiror Company’s publicly filed
reports with the SEC.
|
6.
|
Such
person or entity has been furnished during the course of the transactions
contemplated by this Agreement with all other public information
regarding
the Acquiror Company that such person or entity has requested and
all such
public information is sufficient for such person or entity to evaluate
the
risks of investing in the Acquiror Company Shares.
|
7.
|
Such
person or entity has been afforded the opportunity to ask questions
of and
receive answers concerning the Acquiror Company and the terms and
conditions of the issuance of the Acquiror Company Shares.
|
8.
|
Such
person or entity is not relying on any representations and warranties
concerning the Acquiror Company made by the Acquiror Company or any
officer, employee or agent of the Acquiror Company, other than those
contained in this Agreement.
|
9.
|
Such
person or entity is acquiring the Acquiror Company Shares for such
person’s or entity’s, as the case may be, own account, for investment and
not for distribution or resale to others.
|
10.
|
Such
person or entity will not sell or otherwise transfer the Acquiror
Company
Shares, unless either (a) the transfer of such securities is registered
under the Securities Act or (b) an exemption from registration of
such
securities is available.
|
11.
|
Such
person or entity understands and acknowledges that the Acquiror Company
is
under no obligation to register the Acquiror Company Shares for sale
under
the Securities Act.
|
12.
|
Such
person or entity consents to the placement of a legend on any certificate
or other document evidencing the Acquiror Company Shares substantially
in
the form set forth in Section 4.2.5(a).
|
13.
|
Such
person or entity represents that the address furnished on its signature
page to this Agreement and in Exhibit A is the principal residence
if he
is an individual or its principal business address if it is a corporation
or other entity.
|
14.
|
Such
person or entity understands and acknowledges that the Acquiror Company
Shares have not been recommended by any federal or state securities
commission or regulatory authority, that the foregoing authorities
have
not confirmed the accuracy or determined the adequacy of any information
concerning the Acquiror Company that has been supplied to such person
or
entity and that any representation to the contrary is a criminal
offense.
|
15.
|
Such
person or entity acknowledges that the representations, warranties
and
agreements made by such person or entity herein shall survive the
execution and delivery of this Agreement and the purchase of the
Acquiror
Company Shares.
|
Each
Shareholder indicating that it is not a U.S. person, severally and not jointly,
further represents and warrants to the Acquiror Company as follows:
1.
|
At
the time of (a) the offer by the Acquiror Company and (b) the acceptance
of the offer by such person or entity, of the Acquiror Company Shares,
such person or entity was outside the United States.
|
2.
|
No
offer to acquire the Acquiror Company Shares or otherwise to participate
in the transactions contemplated by this Agreement was made to such
person
or entity or its representatives inside the United States.
|
3.
|
Such
person or entity is not purchasing the Acquiror Company Shares for
the
account or benefit of any U.S. person, or with a view towards distribution
to any U.S. person, in violation of the registration requirements
of the
Securities Act.
|
4.
|
Such
person or entity will make all subsequent offers and sales of the
Acquiror
Company Shares either (x) outside of the United States in compliance
with
Regulation S; (y) pursuant to a registration under the Securities
Act; or
(z) pursuant to an available exemption from registration under the
Securities Act. Specifically, such person or entity will not resell
the
Acquiror Company Shares to any U.S. person or within the United States
prior to the expiration of a period commencing on the Closing Date
and
ending on the date that is one year thereafter (the “Distribution
Compliance Period”), except pursuant to registration under the Securities
Act or an exemption from registration under the Securities Act.
|
5.
|
Such
person or entity is acquiring the Acquiror Company Shares for such
Shareholder’s own account, for investment and not for distribution or
resale to others.
|
6.
|
Such
person or entity has no present plan or intention to sell the Acquiror
Company Shares in the United States or to a U.S. person at any
predetermined time, has made no predetermined arrangements to sell
the
Acquiror Company Shares and is not acting as a Distributor of such
securities.
|
7.
|
Neither
such person or entity, its Affiliates nor any Person acting on behalf
of
such person or entity, has entered into, has the intention of entering
into, or will enter into any put option, short position or other
similar
instrument or position in the U.S. with respect to the Acquiror Company
Shares at any time after the Closing Date through the Distribution
Compliance Period except in compliance with the Securities Act.
|
8.
|
Such
person or entity consents to the placement of a legend on any certificate
or other document evidencing the Acquiror Company Shares substantially
in
the form set forth in Section 4.2.5(b).
|
9.
|
Such
person or entity is not acquiring the Acquiror Company Shares in
a
transaction (or an element of a series of transactions) that is part
of
any plan or scheme to evade the registration provisions of the Securities
Act.
|
10.
|
Such
person or entity has sufficient knowledge and experience in finance,
securities, investments and other business matters to be able to
protect
such person’s or entity’s interests in connection with the transactions
contemplated by this Agreement.
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11.
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Such
person or entity has consulted, to the extent that it has deemed
necessary, with its tax, legal, accounting and financial advisors
concerning its investment in the Acquiror Company Shares.
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12.
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Such
person or entity understands the various risks of an investment in
the
Acquiror Company Shares and can afford to bear such risks for an
indefinite period of time, including, without limitation, the risk
of
losing its entire investment in the Acquiror Company Shares.
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13.
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Such
person or entity has had access to the Acquiror Company’s publicly filed
reports with the SEC.
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14.
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Such
person or entity has been furnished during the course of the transactions
contemplated by this Agreement with all other public information
regarding
the Acquiror Company that such person or entity has requested and
all such
public information is sufficient for such person or entity to evaluate
the
risks of investing in the Acquiror Company Shares.
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15.
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Such
person or entity has been afforded the opportunity to ask questions
of and
receive answers concerning the Acquiror Company and the terms and
conditions of the issuance of the Acquiror Company Shares.
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16.
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Such
person or entity is not relying on any representations and warranties
concerning the Acquiror Company made by the Acquiror Company or any
officer, employee or agent of the Acquiror Company, other than those
contained in this Agreement.
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17.
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Such
person or entity will not sell or otherwise transfer the Acquiror
Company
Shares, unless either (A) the transfer of such securities is registered
under the Securities Act or (B) an exemption from registration of
such
securities is available.
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18.
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Such
person or entity understands and acknowledges that the Acquiror Company
is
under no obligation to register the Acquiror Company Shares for sale
under
the Securities Act.
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19.
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Such
person or entity represents that the address furnished on its signature
page to this Agreement and in Exhibit A is the principal residence
if he
is an individual or its principal business address if it is a corporation
or other entity.
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20.
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Such
person or entity understands and acknowledges that the Acquiror Company
Shares have not been recommended by any federal or state securities
commission or regulatory authority, that the foregoing authorities
have
not confirmed the accuracy or determined the adequacy of any information
concerning the Acquiror Company that has been supplied to such person
or
entity and that any representation to the contrary is a criminal
offense.
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21.
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Such
person or entity acknowledges that the representations, warranties
and
agreements made by such person or entity herein shall survive the
execution and delivery of this Agreement and the purchase of the
Acquiror
Company Shares.
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